General issues and legal aspects

Published on 11/04/2015 by admin

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1 General issues and legal aspects

Surgery is not just about the operation and technical expertise. It includes expert skills in communication and the delivery of informed consent. Surgeons today need to base their practice on evidence-based material, conduct regular audit and be aware of their accountability in every aspect of their care of the patient. This chapter explores evidence-based practice, audit, accountability, informed consent, avoidance of legal action, and communication skills including breaking bad news.

Evidence-based practice

Evidence-based medicine is the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients. Good surgeons use both individual clinical expertise and the best available external evidence, as neither alone is enough. Without the current best evidence, surgical practice risks becoming rapidly out-of-date to the detriment of patients.

Evidence-based surgery is not restricted to randomised trials and meta-analyses but involves tracking down the best external evidence available to answer clinical questions or problems (see Box 1.1). For example, to find out about the accuracy of a diagnostic test, we need to find proper, cross-sectional studies of patients clinically suspected of harbouring the relevant problem and not a randomised trial. Proper follow-up studies of patients inform about prognosis. Systematic review of several randomised trials (meta-analysis) is much more likely to inform about therapy and whether it does more good than harm.

Box 1.1 Examples of classification systems for levels of evidence

Evidence-based medicine is a relatively young discipline whose positive impacts are just beginning to be validated, and it will continue to evolve. These days, several undergraduate and postgraduate continuing medical education programmes adopt it and adapt it to their learners’ needs, providing further information and understanding about what evidence-based medicine is and what it is not.

Clinical governance and audit

Peer review

This is a system whereby hospitals or units are scrutinised by independent peers who assess systems and processes against a set of bench marks for diagnosis and treatment, e.g. for cancer.

The reasons for audit include time utilisation/cost-effectiveness, mortality/morbidity assessment, ensuring quality of diagnostic services, monitoring performance, assessment of newer technologies, knowledge of patient satisfaction, exploration of legal implications and research. Research asks, ‘Are we doing the right operation?’ Audit research asks, ‘Are we doing the operation right?’

For audit to be meaningful, it should satisfy the following criteria:

The audit cycle involves observation of existing practice, the setting of standards, comparison between observed and set standards, implementation of change, and re-audit of clinical practice (Fig. 1.2).

Audit techniques available include morbidity and mortality, incident review (critical incident reporting), clinical record review, adverse occurrence screening, focused audit studies, global audit (comparison between units), and national studies, for example the National Confidential Enquiry into Patient Outcome and Death (NCEPOD).

The essential features of audit include high-quality data collection, relevant and valid measures of outcome, appropriate and valid measures of case mix, a representative population and appropriate statistical analysis.

Informed consent

Informed consent is the process by which fully informed patients can participate in choices about their healthcare. It originates from the legal and ethical right the patient has to direct what happens to his or her body and the ethical duty of the surgeon to involve the patient in his or her healthcare.

Complete informed consent includes a discussion of the following:

In order for the patient’s consent to be valid, he or she must be considered competent to make the decision at hand and consent must be voluntary. To encourage the ‘voluntariness’, the surgeon can emphasise that the patient is participating in a decision, not just signing a form. Comprehension on the part of the patient is as important as the information given. Consequently, the discussion should be carried out in lay person’s terms and the patient’s understanding should be assessed along the way. This should be done by a surgeon who is competent to do the surgery, within the clinic or ward environment prior to any move toward theatre. Consent taken within a few minutes of surgery is not valid.

Information considered adequate

The law in this area suggests one of three approaches:

Most interventions now require informed consent. This includes all aspects of general anaesthetic surgery, interventional and invasive procedures, diagnostic procedures (e.g. OGD, colonoscopy) and local anaesthetic procedures.

When it is not clear that a patient is competent to make his or her own decision about consent, (for example during severe illness which causes stress, anxiety, fear and depression) the surgeon’s duty is to ensure that the patient does have a capacity to make a good decision, by assessing his or her ability to understand the situation, the risks associated with the decision and to communicate a decision based on that understanding. It should be remembered that competent patients have a right to refuse treatment.

If a patient cannot give informed consent, usually the next of kin becomes the appropriate decision-maker. If no appropriate decision-maker is available, surgeons can be allowed to act in the best interests of the patient, for example in an emergency situation, until an appropriate decision-maker is found. In the above setting, the patient’s consent should only be presumed rather than obtained. Care must be taken to assume that consent is implied by the patient’s presence in the hospital ward, clinic or intensive care unit.

Legal aspects of surgical practice

Every surgeon must expect to be the subject of complaint or legal claim from time to time, and be prepared to justify why they have managed the patient in the way that they have. Good surgical practice is defensible practice. This depends on staying within the limits of your expertise, keeping up to date and conducting audit (see above), ensuring effective administration and communicating effectively with patients, their carers and colleagues and ensuring that medical records recall all salient facts relating to the patient. If things go wrong be honest, investigate the facts, explain the situation fully to the patient and do not be afraid to apologise.

While clinical standards continue to improve, complete eradication of error is not possible and there is no foolproof way that surgeons can avoid being litigated against.

Clinical negligence

Claimants have to demonstrate that they were owed a duty of care by their surgeon. This is established as soon as any surgical advice is proffered. Secondly, claimants have to demonstrate that there was a breach of that duty, which requires demonstration that the care provided fell below acceptable standards. In England and Wales this is judged by the Bolam test, which states that care must be provided in accordance with accepted medical practice as determined by experts in the field. Thirdly, claimants must demonstrate that they have suffered harm as a result of substandard care or that harm would have been avoided if adequate care had been provided.

In many hospitals, there are now standard protocols or guidelines for dealing with particular conditions. Surgeons who do not follow unit guidelines must be prepared to justify their management by reference to a responsible body of surgical opinion. If guidelines are not followed, surgeons are making themselves vulnerable to claims of negligence.

Clinical negligence cases are won on evidence, not facts. Inadequate notes, lost records and failing or confused memories may lead to an inability to defend the case. Consequently, some cases which should be defensible are sometimes lost for want of evidence.

It should be remembered that the competence issue extends to the delegation of tasks to others and the delegating surgeon should always check that an individual is competent to a reasonable standard. Equally, delegated duties should not be accepted unless you are confident of completing them to a reasonable standard.

Keeping up to date is important (see above). The use of outdated techniques inevitably makes surgeons vulnerable to criticism. Audit, as defined above, is an integral part of surgical practice which must be demonstrated in these situations.

Administration

The surgeon has a responsibility to ensure that basic systems are in place to deal with patient referral, follow-up, completion of clinical records, correspondence, review of test results and appropriate action taken on discovery of abnormalities. He or she should not rely on administrators for this purpose. Communication skills have been mentioned in terms of informed consent, but it is also vital to ensure good communication between teams and, in particular, between primary and secondary care.

Medical record-keeping is vital and it is essential that each patient contact is adequately recorded so that all clinical developments are noted, together with investigations and actions on results, and that notes for future management, referral and follow-up are recorded. Notes should include a history, examination of the patient, diagnosis, information conveyed to the patient, consent obtained, treatment, follow-up and progress – in a legible form – so that the patient’s care can be picked up by other colleagues.

When things go wrong, the surgeon must readily provide a prompt, open, constructive and honest response to any complaint about the patient’s care. Where appropriate, an apology should be given. You must co-operate with any further enquiry into the treatment of the patient. You must give (to those who are entitled to ask for it) any relevant information in connection with an investigation into your own or another healthcare professional’s conduct, performance or health. Surgeons who prevaricate, appear evasive or refuse to acknowledge fault are far more likely to push their patients towards litigation than those who explain exactly what happened, and apologise for any shortcomings on their part. Patients who are entitled to compensation should receive this swiftly and fairly. It is the surgeon’s responsibility to make sure he is adequately insured against the possibility of litigation. Although in the UK a surgeon’s NHS practise is indemnified, the terms are limited; ‘good Samaritan’ acts are not covered for instance.

Breaking bad news

Breaking bad news to patients is a common part of surgical life, particularly for those surgeons involved in cancer medicine. The following framework is suggested and many courses are now available to clinicians to practise this skill.